Federal Register / Vol. 72, No. 36 / Friday, February 23, 2007 / Proposed Rules 8139 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional instructions 

on submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Air Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566–

1742. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. What Should I Consider as I Prepare 

My Comment for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. Send or deliver 

information identified as CBI only to the 

following address: Roberto Morales, 

OAQPS Document Control Officer 

(C404–02), U.S. EPA, Research Triangle 

Park, NC 27711, Attention Docket ID 

No. EPA–HQ–OAR–2003–0076. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

B. Where Can I Get a Copy of This 

Document and Other Related 

Information? 

In addition to being available in the 

docket, an electronic copy of this notice 

will also be available on the World 

Wide Web. Following signature by the 

Regional Administrator, a copy of this 

notice will be posted at http:// 

www.epa.gov/nsr. 

C. What Will Occur at the Public 

Hearings? 

The public hearings will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning this proposed change. The 

EPA may ask clarifying questions during 

the oral presentations, but will not 

respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as any oral 

comments and supporting information 

presented at the hearing. 

Dated: February 13, 2007. 

Bharat Mathur, 

Acting Regional Administrator, Region 5. 

[FR Doc. 07–826 Filed 2–22–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Part 3800 

[WO–620–1430–00–24 1A] 

RIN 1004–AD69 

Surface Management 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: This advance notice of 

proposed rulemaking is related to the 

Bureau of Land Management (BLM) 

surface management regulations for 

mining operations authorized by the 

Mining Law. In a previous Federal 

district court proceeding, environmental 

groups challenged the BLM’s 

regulations on surface management 

under the Mining Law in 43 CFR 

subpart 3809, issued by the Department 

in 2001, in part, because the regulations 

did not require fair market value 

payment for the use of Federal lands for 

mining operations when the lands are 

‘‘invalidly claimed’’ or unclaimed under 

the Mining Law. For the most part, the 

court upheld the 3809 regulations, but 

remanded them in part to the 

Department ‘‘for evaluation, in light of 

Congress’s expressed policy goal for the 

United States to ‘receive fair market 

value of the use of the public lands and 

their resources.’ ’’ This advance notice 

of proposed rulemaking is intended to 

assist the BLM in the evaluation ordered 

by the Court. 

DATES: You must submit your comments 

by April 24, 2007. The BLM may not 

necessarily consider or include in the 

Administrative Record for the advance 

notice of proposed rulemaking 

comments that the BLM receives after 

the close of the comment period or 

comments delivered to an address other 

than those listed below (see ADDRESSES). 

ADDRESSES: Mail: Director (630), Bureau 

of Land Management, U.S. Department 

of the Interior, Mail Stop 401 LS, 1849 

C St., NW., Washington, DC 20240, 

Attention: 1004–AD69. 

Personal or messenger delivery: 1620 

L Street, NW., Washington, DC 20036. 

Internet e-mail: 

comments_washington@blm.gov 

(include ‘‘Attn: 1004–AD69’’). Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions at this Web site. 

FOR FURTHER INFORMATION CONTACT: 

Scott Haight at (406) 538–1930, for 

information relating to the surface 

management program or the nature of 


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8140 Federal Register / Vol. 72, No. 36 / Friday, February 23, 2007 / Proposed Rules 

the notice, or Ted Hudson at (202) 452–

5042 for information relating to the 

rulemaking process generally. Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 1–

800–877–8330, 24 hours a day, seven 

days a week, to contact the above 

individuals. 

SUPPLEMENTARY INFORMATION: 

I. Public Comment Procedures 

II. Background 

III. Analysis and Public Inquiry 

A. ‘‘Invalidly Claimed’’ Lands 

B. Lands on Which Claims of Unknown 

Validity are Located 

C. Unclaimed Lands 

I. Public Comment Procedures 

Please submit e-mail comments as an 

ASCII file avoiding the use of special 

characters and any form of encryption. 

Please also include ‘‘Attn: 1004–AD69’’

and your name and return address in 

your e-mail message. 

You may examine documents 

pertinent to this advance notice of 

proposed rulemaking at the L Street 

address. 

A. How do I comment on the notice? 

If you wish to comment, you may 

submit your comments by any one of 

several methods: 

• You may mail comments to Director 

(630), Bureau of Land Management, 

Administrative Record, Room 401 LS, 

Director (630), Mail Stop 401 LS, Bureau 

of Land Management, U.S. Department 

of the Interior, 1849 C Street, NW., 

Washington, DC 20240, Attn: 1004–

AD69. 

• You may deliver comments to 

Room 401, 1620 L Street, NW., 

Washington, DC 20036. 

• You may access and comment on 

the notice at the Federal eRulemaking 

Portal by following the instructions at 

that site (see ADDRESSES). 

• You may also comment via e-mail 

to comments_washington@blm.gov. If 

you do not receive a confirmation that 

we have received your electronic 

message, contact us directly (202) 452–

5030. 

Please make your comments as 

specific as possible by confining them to 

issues for which comments are sought 

in this notice, and explain the bases for 

your comments. 

The comments and recommendations 

that will be most useful and likely to 

influence agency decisions are: 

1. Those supported by quantitative 

information or studies; and 

2. Those that include citations to, and 

analyses of, the applicable laws and 

regulations. 

The BLM may not necessarily 

consider or include in the 

Administrative Record for the notice 

comments that we receive after the close 

of the comment period (see DATES or 

comments delivered to an address other 

than those listed above (see ADDRESSES). 

B. May I review comments submitted by 

others? 

Comments, including names and 

street addresses of respondents, will be 

available for public review at the 

address listed under ADDRESSES: 

‘‘Personal or messenger delivery’’

during regular hours (7:45 a.m. to 4:15 

p.m.), Monday through Friday, except 

holidays. 

C. Can my name and address be kept 

confidential? 

Before including your address, 

telephone number, e-mail address, or 

other personal identifying information 

in your comment, be advised that your 

entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask in your comment to 

withhold from public review your 

personal identifying information, we 

cannot guarantee that we will be able to 

do so. 

The BLM will always make 

submissions from organizations or 

businesses, and from individuals 

identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspections in their entirety. 

II. Background 

In the Federal Land Policy and 

Management Act (‘‘FLPMA’’), Congress 

declared 13 policy goals for the public 

lands, among which are that: 

• The public lands ‘‘be managed in a 

manner which recognizes the Nation’s 

need for domestic sources of minerals’’

(43 U.S.C. 1701(a)(12)), and 

• ‘‘[T]he United States receive fair 

market value of the use of the public 

lands and their resources unless 

otherwise provided for by statute’’ (43 

U.S.C. 1701(a)(9)). Following these 13 

policy declarations, Congress stated that 

the ‘‘policies of this Act shall become 

effective only as specific statutory 

authority for their implementation is 

enacted by this Act or by subsequent 

legislation and shall then be construed 

as supplemental to and not in 

derogation of the purposes for which 

public lands are administered under 

other provisions of law.’’ (43 CFR 

1701(b)). 

Commercial mining is one of the 

purposes for which public lands are 

administered. Congress declared in 1970 

that ‘‘it is the continuing policy of the 

Federal Government in the national 

interest to foster and encourage private 

enterprise in (1) the development of 

economically sound and stable domestic 

mining, minerals, metal and mineral 

reclamation industries, (2) the orderly 

and economic development of domestic 

mineral resources, reserves, and 

reclamation of metals and minerals to 

help assure satisfaction of industrial, 

security and environmental needs, (3) 

mining, mineral, and metallurgical 

research, including the use and 

recycling of scrap to promote the wise 

and efficient use of our natural and 

reclaimable mineral resources, and (4) 

the study and development of methods 

for the disposal, control, and 

reclamation of mineral waste products, 

and the reclamation of mined land, so 

as to lessen any adverse impact of 

mineral extraction and processing upon 

the physical environment that may 

result from mining or mineral 

activities.’’ (30 U.S.C. 21a). The 

Secretary of the Interior has the 

statutory responsibility to carry out this 

national policy when exercising his 

authority under Federal laws such as 

FLPMA. 

In Mineral Policy Center v. Norton, 

292 F. Supp. 2d 30 (D.D.C. 2003), 

plaintiffs challenged the BLM’s surface 

management regulations for hardrock 

mining, which are found at 43 CFR 

subpart 3809. One of the arguments that 

the plaintiffs made was that, on lands 

on which there are no valid mining 

claims, the BLM should be charging fair 

market value for use of the public lands 

for mining operations. Mineral Policy 

Center, 292 F. Supp. 2d at 40. 

In response, the BLM argued that, 

‘‘the ‘otherwise provided for by statute’

exception set forth in FLPMA section 

102(a)(9) exempts mining operations on 

both claimed and unclaimed lands from 

the fair market value policy, where such 

operations are conducted under the 

Mining Law.’’ (Federal Defendants’

Consolidated Motion for Summary 

Judgment at page 38). 

Nevertheless, the court concluded 

that ‘‘[o]perations neither conducted 

pursuant to valid mining claims nor 

otherwise explicitly protected by 

FLPMA or the Mining Law (i.e., 

exploration activities, ingress and 

egress, and limited utilization of mill 

sites) must be evaluated in light of 

Congress’s expressed policy goal for the 

United States to ‘receive fair market 

value of the use of the public lands and 

their resources’ ’’ (Mineral Policy Center, 

292 F. Supp. 2d at page 51). The court 

then remanded the regulations to the 

Department to evaluate the competing 

priorities set forth in FLPMA as applied 

to invalidly claimed or unclaimed lands 

‘‘in light of Congress’s expressed policy 


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Federal Register / Vol. 72, No. 36 / Friday, February 23, 2007 / Proposed Rules 8141 

goal for the United States to ‘receive fair 

market value of the use of public lands 

and their resources’ ’’ (id. at pages 51 

and 57). 

III. Analysis and Public Inquiry 

The fair market value policy in 

FLPMA applies ‘‘unless otherwise 

provided for by statute’’ (43 U.S.C. 

1701(a)(9)). Based on this exception, the 

court in Mineral Policy Center 

concluded that the Mining Law 

authorizes operations, including 

possession, occupancy, and mineral 

extraction activities, on valid mining 

claims without payment of fair market 

value for that use (292 F. Supp. 2d at 

pages 47 and 51). The court also 

concluded that the Mining Law 

authorizes exploration activities, mill 

site use in association with valid claims, 

and ingress and egress to valid claims, 

without payment of fair market value for 

that use (id.). The court instructed the 

BLM to evaluate the application of 

FLPMA’s competing priorities, in light 

of the policy goal to receive fair market 

value for the use of the public land, to 

mining activities that amount to more 

than initial exploration activities 

conducted on invalidly claimed or 

unclaimed lands (id. at pages 46 and 

50). 

A. ‘‘Invalidly Claimed’’ Lands 

The Mining Law establishes the 

parameters under which mining 

claimants may locate and hold a mining 

claim (30 U.S.C. 23, 28). It is without 

question that ‘‘in order to create valid 

rights or initiate a title as against the 

United States a discovery of mineral is 

essential’’ (Union Oil Co. v. Smith, 249 

U.S. 337, 346 (1919)). Nevertheless, 

‘‘while discovery is the indispensable 

fact and the marking and recording of 

the claim dependent upon it, yet the 

order of time in which these acts occur 

is not essential in the acquisition from 

the United States of the exclusive right 

of possession of the discovered minerals 

or the obtaining of a patent therefor, but 

that discovery may follow after location 

and give validity to the claim as of the 

time of discovery, provided no rights of 

third parties have intervened.’’ (Id.) 

Because mining claims are selfinitiated and may be located before the 

claimant discovers a valuable mineral 

deposit, the BLM cannot know whether 

an unpatented mining claim on the 

public lands is valid unless and until it 

determines the validity of the claim. 

However, while the BLM has discretion 

to initiate a mining claim validity 

examination at any time before a patent 

is issued, as a practical matter, it 

determines or verifies claim validity 

only rarely. Cameron v. United States, 

252 U.S. 450, 460 (1920); Mark 

Squillace, The Enduring Vitality of the 

General Mining Law of 1872, 18 Envtl. 

L. Rep. 10,261, 10,266 (1988) (stating 

that the government rarely considers the 

validity of an unpatented mining claim). 

See generally Legal Requirements for 

Determining Mining Claim Validity 

Before Approving a Mining Plan of 

Operations, M–37012 (Nov. 14, 2005). 

The BLM cannot feasibly embark on 

a program to make technical 

determinations of the validity of all 

unpatented mining claims. The 

administrative cost per mining claim of 

conducting a validity determination, 

including a field examination and an 

economic analysis, and carrying out a 

contest hearing, if necessary, is 

substantial. The BLM estimates that the 

cost per mining claim for a full validity 

determination, including an 

administrative contest hearing, ranges 

between $12,000 and $80,000. There are 

over 250,000 active mining claims on 

the public lands. Conducting validity 

determinations for all 250,000 mining 

claims would exceed the BLM’s annual 

operating budget many times over. 

Even if the BLM was appropriated 

sufficient funds and was able to locate 

and employ enough qualified mineral 

examiners to engage in such an 

extensive program, the open nature of 

the public lands makes the exercise 

futile. Mining claimants can locate 

mining claims only on lands that are 

open to the operation of the Mining 

Law. In rare circumstances, the lands on 

which mining claimants have located 

mining claims may be subsequently 

withdrawn from the operation of the 

Mining Law. However, almost all of the 

250,000 existing mining claims are on 

public lands that remain open to the 

operation of the Mining Law. On these 

open lands, a validity determination is 

an inefficient use if not an outright 

waste of government resources, because 

nothing stops the claimant from 

immediately relocating a new claim on 

the same lands covered by the 

invalidated mining claim. 

In light of these practical 

administrative considerations, the BLM 

reasonably focuses its limited 

appropriations on conducting validity 

examinations where they are required. 

The BLM’s regulations at 43 CFR 

3809.100 and 3862.1–1 require a 

complete validity determination only if 

a claimant: 

(1) Proposes mining operations on 

lands that were withdrawn or segregated 

from the operation of the Mining Law, 

or 

(2) Has applied for a patent. 

No law requires the BLM to determine 

the validity of mining claims before 

approving operations on lands that are 

open to the operation of the Mining Law 

(Legal Requirements for Determining 

Mining Claim Validity Before Approving 

a Mining Plan of Operations, M–37012 

(Nov. 14, 2005)). See also, Western 

Shoshone Defense Project, 160 IBLA 32, 

56 (2003) (‘‘BLM generally does not 

determine the validity of the affected 

mining claims before approving a plan 

of operations’’). 

The BLM cannot know whether lands 

are ‘‘invalidly claimed’’ unless it has 

conducted a validity examination and 

has determined that a mining claim is 

in fact invalid, or unless the claim has 

been voided by operation of law because 

of the claimant’s failure to comply with 

an applicable annual maintenance 

requirement. In both instances, once a 

claim is void by operation of law or void 

because the BLM has determined that it 

is invalid, the claim no longer exists. 

Therefore, as the BLM applies it, the 

phrase ‘‘invalidly claimed’’ only covers 

lands on which a mining claim was 

formerly located that the BLM knows to 

be invalid because (1) The BLM has 

determined that the claim is invalid or 

(2) the claim was voided by operation of 

law because of the claimant’s failure to 

comply with annual maintenance 

requirements. 

On withdrawn lands, the BLM does 

not approve mining operations for 

mining claims it has determined to be 

invalid or that have been voided by 

operation of law. Consequently, on 

withdrawn lands, since there is no 

authorized use of invalidated mining 

claims, the BLM need not consider 

whether it should receive fair market 

value for use of such ‘‘invalidly 

claimed’’ lands. 

On open lands, the lands on which 

voided or invalidated mining claims 

once existed are nothing more than 

unclaimed lands. See section C below 

for further discussion regarding the use 

of unclaimed lands. 

B. Lands on Which Claims of Unknown 

Validity are Located 

The court’s decision in Mineral Policy 

Center did not address the use of lands 

on which mining claims of unknown 

validity exist. The parties did not brief 

this issue, and the court’s decision did 

not consider the distinction between 

claims that the BLM has determined to 

be invalid and those for which the BLM 

has made no validity determination. As 

previously noted, the court concluded 

that the Mining Law authorizes 

operations, including possession, 

occupancy, and mineral extraction 

activities, on valid mining claims 

without payment of fair market value for 

that use (Mineral Policy Center, 292 F. 


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8142 Federal Register / Vol. 72, No. 36 / Friday, February 23, 2007 / Proposed Rules 

Supp. 2d at page 51). And while the 

court remanded the regulations in part 

for the BLM to evaluate whether it 

should charge fair market value for the 

use of invalidly claimed lands, we have 

already explained that, on withdrawn 

lands, there is no authorized use of 

invalidated mining claims and, 

therefore, the BLM need not consider 

whether it should receive fair market 

value for use of such ‘‘invalidly 

claimed’’ lands. In addition, we have 

explained that, on open lands, the lands 

on which voided or invalidated mining 

claims once existed are nothing more 

than unclaimed lands, which are 

discussed in section C below. 

What remains is the use of lands 

covered by mining claims of unknown 

validity. For the reasons described 

below, the BLM tentatively concludes 

that the use of mining claims of 

unknown validity for mining operations 

falls within the ‘‘otherwise provided for 

by statute’’ exception set forth in 

FLPMA’s Section 102(a)(9). Under this 

interpretation, the BLM may not apply 

FLPMA’s fair market value policy to 

approved mining operations that occur 

on mining claims of unknown validity. 

We solicit your views on this 

interpretation and the analysis set forth 

below. 

As explained above, mining claims 

can be located before or after a claimant 

discovers a valuable mineral deposit 

(Union Oil Co. v. Smith, 249 U.S. at 

346). Until the BLM examines the 

validity of a mining claim, it does not 

know whether a given claim is valid. 

The BLM cannot simply assume that a 

mining claim of unknown validity is 

invalid. The BLM can invalidate a claim 

without a validity determination only if 

the claim is void by operation of law 

because of a mining claimant’s failure to 

comply with particular statutory filing 

or fee requirements (30 U.S.C.A. 28i 

(West Supp. 2006); 43 U.S.C. 1744(c)). 

Otherwise, the BLM must conduct a 

validity determination and, except in 

rare instances involving undisputed 

facts, contest a claim’s validity by giving 

the claimant notice and an opportunity 

for a hearing before it can declare a 

claim invalid. Cameron v. United 

States, 252 U.S. 450, 460 (1920) (‘‘so 

long as the legal title remains in the 

government it does have power, after 

proper notice and upon adequate 

hearing, to determine whether the claim 

is valid and, if it be found invalid, to 

declare it null and void’’). 

The BLM manages mining claims of 

unknown validity as active mining 

claims under the Mining Law, as ratified 

repeatedly by Congress. In FLPMA, 

Congress recognized the existence of 

these active mining claims of unknown 

validity that are located under the 

Mining Law. In Section 314 of FLPMA 

(43 U.S.C. 1744), Congress amended the 

Mining Law to require mining 

claimants—

(1) To record each mining claim with 

the BLM by filing a copy of the notice 

of location, and 

(2) to file annual proof of having 

conducted the assessment work that is 

required by the Mining Law for each 

mining claim. 

Claimants are not required to 

demonstrate claim validity before 

complying with these filing 

requirements. Nor is the BLM required 

to determine the validity of any mining 

claim before it accepts these filings. 

Congress applied these requirements to 

all mining claims located under the 

Mining Law regardless of the validity of 

the claims, thereby allowing claimants 

to maintain mining claims of unknown 

validity. At the same time, by making 

these filings, a claimant does not make 

valid a claim that is not otherwise valid 

under applicable law (43 U.S.C. 

1744(d)). 

In 1992, Congress continued to 

recognize the existence of active mining 

claims of unknown validity when it 

passed the Department of the Interior 

and Related Agencies Appropriations 

Act of 1993, (Pub. L. 102–381, 106 Stat. 

1374 (1992) (Appropriations Act)). The 

Appropriations Act required holders of 

unpatented mining claims to pay an 

annual rental fee of $100 per claim for 

1993 and 1994, without regard to the 

underlying validity of the claims. Rent 

is defined as a ‘‘fixed periodical return 

made by a tenant or occupant of 

property to the owner for the possession 

or use thereof’’ (Merriam-Webster’s 

Collegiate Dictionary 991 (10th ed. 

1998)). Congress has extended this 

rental or maintenance fee requirement 

four times in subsequent legislation. See 

107 Stat. 312, 405–407 (1993); Public 

Law 105–240, Section 116 (1998); 

Public Law 107–63 (2001) (codified at 

30 U.S.C.A. 28f. (West Supp. 2002)); 

Public Law 108–108 (2003) (codified at 

30 U.S.C.A. 28f. (West Supp. 2006)). 

The currently applicable law requires 

the fee payment until 2008. Congress 

also gave the BLM authority to make 

periodic adjustments to this fee based 

on changes in the Consumer Price Index 

(30 U.S.C.A. 28j(c) (West Supp. 2006)). 

In 2004, the BLM increased the fee from 

$100 to $125 (69 FR 40294, July 1, 

2004). Since 1992, the BLM has 

collected over $300 million from mining 

claimants in fee payments. 

Because Congress allows mining 

claimants to locate mining claims under 

the Mining Law and maintain them by 

making annual payments to the BLM 

while the validity of the claims is 

unknown, the use of these mining 

claims for mining operations falls 

within the ‘‘otherwise provided for by 

statute’’ exception set forth in FLPMA’s 

Section 102(a)(9). Therefore, the BLM 

has tentatively concluded that it may 

not apply FLPMA’s fair market value 

policy to approved mining operations 

that occur on mining claims of 

unknown validity. 

C. Unclaimed Lands 

‘‘Unclaimed lands’’ are lands on 

which no mining claims are located. 

The BLM is not aware of any instance 

in which a miner or mining company 

would use unclaimed lands to conduct 

mining and mineral production 

operations or related uses. The BLM is 

not aware of any miner or mining 

company that would be willing to invest 

money or resources in the development 

of a mine without some tenure in the 

land in the form of a mining claim or 

mill site. If a mining company were to 

file a plan of operations to develop a 

mine on unclaimed lands, a third party 

could easily locate mining claims over 

the area and assert adverse rights to the 

lands. Therefore, it is the BLM’s 

tentative conclusion that no one uses 

unclaimed lands for mining operations 

that go beyond exploration activities on 

the public lands. 

Nevertheless, the BLM requests public 

comments regarding whether any 

miners or mining companies in fact use 

unclaimed lands for such mining 

operations. The BLM asks for detailed 

examples of any such use. After the 

BLM receives and considers these 

comments, it will determine whether 

further evaluation of FLPMA’s 

competing priorities is needed with 

regard to any mining operations that go 

beyond exploration activities on 

unclaimed lands. 

Author 

The principal author of this notice is 

Scott Haight of the Montana State 

Office, assisted by Ted Hudson of the 

Division of Regulatory Affairs, 

Washington Office, Bureau of Land 

Management, and Karen Hawbecker, 

Office of the Solicitor, Department of 

the Interior. 

Dated: February 5, 2007. 

C. Stephen Allred, 

Assistant Secretary of the Interior. 

[FR Doc. E7–3077 Filed 2–22–07; 8:45 am] 

BILLING CODE 4310–84–P 


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